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CIRCUIT COURT CLERKS’ MANUAL – CIVIL OVERVIEW PAGE 1-1 Chapter 1 - Overview Civil Law - Generally Civil cases involve disputes among individuals (including corporations, which are treated legally as an individual) or groups of individuals. Unlike criminal law which is intended to deter behavior deemed detrimental to society and to deal fairly with those who misbehave, civil law is intended to make a wronged person whole again through specific performance, monetary compensation by the wrongdoer or a restitution of rights. The remedy sought in civil actions involves the right to recover damages, usually in monetary terms, or require a party to the suit to complete an agreement or refrain from some activity. The person or party who initiates the case is termed the “plaintiff” and the person or party against whom the suit is brought is termed the “defendant.” See the subsection in this chapter, “Participants in a Civil Action” for more detailed information. The number of plaintiffs or defendants included in a suit is unlimited. In civil cases, the plaintiff must prove his/her contentions by a preponderance or greater weight of evidence. Sources of law applicable to civil procedure in Virginia include federal, state and local law. The United States Constitution, federal statutes, and court cases construing federal law comprise the body of federal law. Virginia civil law consists of the state constitution, state statutes and court decisions addressing issues of state law. Specific sources of state civil law are Article I, Section 11 of the Constitution of Virginia and Title 8.01 of the Code of Virginia. Civil Actions - Law and Chancery No Longer Distinguished One of the most common questions asked upon the filing of a civil action has always been - Is the case to be filed one “at law” or “in equity”. Prior to January 1, 2006, cases were distinguished as either “Law” or “Chancery” and filed on either the law or chancery “side” of the court. Effective January 1, 2006, however, amendments to the CODE OF VIRGINIA and the Rules of Court eliminated the distinction of a case as either “Law” or “Chancery” and instead classified cases as “Civil”, in essence abolishing the “chancery side” of the court. While the case itself may remain either “legal” or “equitable” in nature, beginning January 1, 2006, the case is filed in the unified Civil Division of the court. This manual has attempted to identify many of the suits/actions filed in the clerk's office. See the chapter, “Suits/Action Types” for a complete listing of the most common suits/actions filed in the circuit court. A statutory proceeding which provides an adequate and complete remedy at law is not an equity case. See 7 MICHIES JURISPRUDENCE, “Equity”, § 3 and Attorney General Opinion to Crockett, dated 12/29/69 (1969-70, page 237); Proceeding for sale of property - Not Chancery cause. Prior to January 1, 2006, Part Two of the Rules of the Supreme Court applied to all chancery suits or suits in equity, i.e. divorces, injunctions, partition suits whereas Part Three of the Rules of the Supreme Court applied to cases on the law docket. Specifically, Part Three Office of the Executive Secretary Department of Judicial Services Rev: 8/19 CIRCUIT COURT CLERKS’ MANUAL – CIVIL OVERVIEW PAGE 1-2 Rules then applied to all civil actions for law in a court of record seeking a judgment personam for money only, actions for establishment of boundaries, ejectment, unlawful detainer, detinue, a refund of taxes, and declaratory judgments at law, including cases appealed or removed to such courts from inferior courts whenever applicable to such cases. Effective January 1, 2006, Part Three of the Rules of the Supreme Court was amended to pertain to all “civil” cases, whether legal or equitable in nature. Common Law and Statute Law The basic law of Virginia is the Common Law of England, which continues in full force and effect until altered by the General Assembly. (Va. Code § 1-200). https://law.lis.virginia.gov/vacode/1-200/ The Common Law of England is composed of uncodified case law providing precedents and treatises of opinions of English courts. These opinions are also the source of the subject matter of common law and for the extent of its jurisdiction. Statute Law, the enactments of the General Assembly which are codified in the Code of Virginia, change the Common Law of Virginia, and either abolish, amend or establish rights and remedies which previously may (or may not) have existed at common law. Actions “at law” usually seek monetary damage awards. Equity • The system of law known as Equity was borrowed from England, called the court of chancery, and has been expanded by judicial interpretation and statutory enactments which have given equity courts powers to resort to various common law remedies, such as jurisdiction to: • Decree a monetary award (Jones v. Tunis, 99 Va. 220, 37 S.E. 841 (1901); Grubb v. Starkey, 90 Va. 831, 20 S.E. 784 (1894)). • Litigate a dispute before any damages have occurred by declaratory judgment. (Va. Code § 8.01-184). • Award an attachment during a pending action. (Va. Code § 8.01- 574). • Issue a writ of fieri facias based on a decree in equity as if it were a judgment at common law. (Va. Code §§ 8.01-426 and 8.01-427). • The equity court has been empowered by statute law entirely has been given new jurisdictions that were previously handled by ecclesiastical courts: • To grant divorces and annulments from marriage. (Va. Code § 20- 96). • To probate wills. (Va. Code § 64.2-443). Office of the Executive Secretary Department of Judicial Services Rev: 8/19 CIRCUIT COURT CLERKS’ MANUAL – CIVIL OVERVIEW PAGE 1-3 • In addition, the General Assembly gave equity courts jurisdiction to: • Impeach or establish a will. (Va. Code § 64.2-448). • To order adoptions (which was previously unknown to either English or Virginia law), in 1942. (Va. Code § 63.2-1201). • A list of subjects of equity jurisdiction, first set out in Notes On Virginia Civil Procedure, by W. H. Bryson, published in 1979, follows: • To administer decedent's estate; • To supervise accounts of fiduciaries; • To supervise estates of persons under disabilities; • To supervise charities and publics trusts; • To grant divorces, alimony and separate maintenance; • To assign dower rights and compel election of rights; • To interpret wills and deeds; • To impeach instruments of fraud; • To reform contracts and writings; • To set up lost instruments • To review order of probate; • To hear creditor's bills; • To marshal assets; • To compel contribution, exoneration, and subrogation; • To set aside fraudulent conveyances; • To set aside awards of arbitrators; • To appoint receivers; • To settle partnership affairs; • To specifically enforce contracts • To enforce trusts; • To foreclosure or redeem mortgages; • To compel partition of common interests • To enjoin torts and nuisances; • To enforce liens; • To remove clouds on title and to quiet title; • To compel claimants to interplead; • To enjoin fraudulent judgments; and • To compel joining in bills of peace. Office of the Executive Secretary Department of Judicial Services Rev: 8/19 CIRCUIT COURT CLERKS’ MANUAL – CIVIL OVERVIEW PAGE 1-4 Effect of Distinction between Law and Equity While the federal courts merged law and equity in 1938, Virginia courts retained a bifurcated system until January 1, 2006. • Classification of an action as one of “at law” or one “in equity” affects the documentation of: 1) Availability and forms of relief; 2) Availability of certain defenses; and 3) Form and type of review: 4) Bill of Review in Equity (Va. Code § 8.01-623), and Appeals to either the Supreme Court of Virginia (Va. Code Title 17.1 Ch. 3) or the Court of Appeals (Va. Code Title 17.1 Ch. 4). Court Organization and Jurisdictional Distinctions The organizational structure of Virginia's court system has been streamlined in recent years to increase the quality of the judicial system as well as the efficiency with which justice is dispensed. Virginia has four levels of courts: 1) the Supreme Court, 2) the Court of Appeals, 3) the circuit court, and 4) the district court (composed of the general district court and juvenile and domestic relations district courts). For purposes of this manual, jurisdictional distinctions among the courts are presented only as they relate to civil cases. Supreme Court of Virginia The Supreme Court of Virginia is made up of seven justices elected by a majority vote of both houses of the General Assembly for a term of twelve years. The Supreme Court of Virginia is the highest court in the Commonwealth and is frequently referred to as the “court of last resort.” It has both original and appellate jurisdiction, but its primary purpose is to review decisions of lower courts from which appeals have been allowed. Va. Const. Article VI, § 1. Virginia does not allow an appeal to the Supreme Court as a matter of right except in cases involving the State Corporation Commission, the disbarment of an attorney, and review of the death penalty. The Court's original jurisdiction is limited to cases of habeas corpus (ordering one holding custody to produce the detained person before the Court for the purpose of determining whether such custody is proper), mandamus (ordering the holder of an office to perform his/her duty), and prohibition (ordering an action stopped in a lower court). The Court also has original jurisdiction in matters filed by the Judicial Inquiry and Review Commission relating to judicial censure, retirement, and removal of judges. The Supreme Court may, in its discretion, on motion of the Court of Appeals or on its own motion, certify an appeal which was filed with the Court of Appeals for review by the Office of the Executive Secretary Department of Judicial Services Rev: 8/19 CIRCUIT COURT CLERKS’ MANUAL – CIVIL OVERVIEW PAGE 1-5 Supreme Court.
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